NEW JUS­TICE HEAD CRE­ATES MUELLER IN­QUIRY UN­CER­TAINTY

Democrats vow to pro­tect Rus­sia probe from pres­i­dent Trump and his new act­ing at­tor­ney-gen­eral.

On Thurs­day, a top Jus­tice De­part­ment of­fi­cial trav­elled across down­town Wash­ing­ton as he does ev­ery other week to the of­fice of Robert Mueller to check on the progress of the spe­cial coun­sel’s in­ves­ti­ga­tion. The visit was the first since Pres­i­dent Don­ald Trump in­stalled a loy­al­ist atop the de­part­ment to take con­trol of an in­quiry that has been his ob­ses­sion.

The new act­ing at­tor­ney-gen­eral, Matthew G Whi­taker, will over­see the in­ves­ti­ga­tion as Mr Mueller and his team make nu­mer­ous crit­i­cal de­ci­sions in the com­ing weeks: whether to in­dict more of Mr Trump’s as­so­ci­ates, whether to sub­poena the pres­i­dent to force him to sit for an in­ter­view and whether to re­quest le­niency be­fore a judge when Michael T Flynn, Paul Manafort and other for­mer Trump aides are sen­tenced.

Much is still un­known about how ac­tive a role Mr Whi­taker will play in over­see­ing the spe­cial coun­sel’s work. Rod J Rosen­stein, the deputy at­tor­ney-gen­eral, has over­seen it and sent a top aide, Ed O’Cal­laghan, to Mr Mueller’s of­fice ev­ery two weeks, ac­cord­ing to a de­part­ment of­fi­cial. But Mr Trump’s fir­ing of At­tor­ney-Gen­eral Jeff Ses­sions and choice of Mr Whi­taker, who has a his­tory of loy­alty to the White House and a record of crit­i­cal state­ments about Mr Mueller’s work, cre­ated an un­cer­tain fu­ture for an in­ves­ti­ga­tion that was thought to be some­what pro­tected from po­lit­i­cal in­flu­ence.

New ev­i­dence emerged on Thurs­day that Mr Whi­taker has al­ready de­cided the an­swer to the cen­tral ques­tion of Mr Mueller’s in­ves­ti­ga­tion. In an in­ter­view last year, first re­ported by The Daily Beast, Mr Whi­taker flatly pro­nounced, “The truth is, there was no col­lu­sion with the Rus­sians and the Trump cam­paign.”

With no sign that Mr Whi­taker will re­cuse him­self from over­see­ing the in­ves­ti­ga­tion, his ev­i­dent hos­til­ity to­ward Mr Mueller’s in­quiry height­ened fears among Democrats that he might try to sab­o­tage it. At an ap­peals court hear­ing on Thurs­day, a mem­ber of Mr Mueller’s team em­pha­sised that the act­ing at­tor­ney gen­eral di­rectly over­sees their work.

“He is aware of what we are do­ing. He can ask ques­tions,” Michael R Dreeben, one of the lawyers work­ing for Mr Mueller, said of Mr Whi­taker. “It is not the case that the spe­cial coun­sel is off in a free-float­ing en­vi­ron­ment.”

House Democrats have said they would vig­or­ously pro­tect Mr Mueller’s in­ves­ti­ga­tion — or even try to con­tinue a ver­sion of it af­ter they take power in Jan­uary if the Jus­tice De­part­ment shuts it down.

In a con­fer­ence call on Thurs­day af­ter­noon, House Democrats dis­cussed steps they could take, ac­cord­ing to one law­maker who par­tic­i­pated. The call was led by Rep Nancy Pelosi of Cal­i­for­nia, the Demo­cratic leader, along with the se­nior Democrats on the com­mit­tees with over­sight re­spon­si­bil­i­ties re­lated to the in­quiry: Jer­rold Nadler of the Ju­di­ciary Com­mit­tee, Adam B Schiff of the In­tel­li­gence Com­mit­tee and Eli­jah Cum­mings of the Over­sight and Gov­ern­ment Re­form Com­mit­tee.

Among the plans dis­cussed, the law­maker said, were a res­o­lu­tion to pro­tect Mr Mueller’s work, and ef­forts to insert lan­guage into must-pass year-end spend­ing bills to in­su­late the in­ves­ti­ga­tion through ju­di­cial re­view and re­quir­ing crit­i­cal doc­u­ments be pre­served.

“We will be scru­ti­n­is­ing any ac­tion taken to im­pede the Mueller in­ves­ti­ga­tion — and for the new act­ing at­tor­ney-gen­eral, he needs to un­der­stand that we will keep an eye on any ac­tion that he or oth­ers might take to in­ter­fere with the ad­min­is­tra­tion of jus­tice,” Mr Schiff said.

He said that Democrats were keenly in­ter­ested in learn­ing whether Mr Trump had sought a com­mit­ment from Mr Whi­taker not to re­cuse him­self from the Rus­sia in­ves­ti­ga­tion, re­gard­less of po­ten­tial ad­vice of ethics lawyers.

Mr Whi­taker has ap­peared ea­ger to please the pres­i­dent in meet­ings in the Oval Of­fice, ac­cord­ing to two peo­ple with di­rect knowl­edge of his vis­its there. Dur­ing those dis­cus­sions, they said, he ap­peared to agree with Mr Trump when the pres­i­dent de­nounced the Mueller in­ves­ti­ga­tion.

On elec­tion night, as he watched re­turns come in show­ing that the Repub­li­can ma­jor­ity in the Se­nate was likely to ex­pand, Mr Trump ap­peared em­bold­ened, ac­cord­ing to peo­ple fa­mil­iar with his dis­cus­sions. He told close as­so­ci­ates that he wanted Ses­sions’ res­ig­na­tion let­ter soon. Still, the speed with which he got it sur­prised some of Mr Trump’s aides.

Mr Trump’s lawyers have spent nearly a year ne­go­ti­at­ing the terms of a pres­i­den­tial in­ter­view with the spe­cial coun­sel. The two sides ap­peared to reach an agree­ment in Septem­ber that would al­low Mr Trump to an­swer ques­tions in writ­ing re­lated to Rus­sia, but the lawyers have yet to send the an­swers to the spe­cial coun­sel’s of­fice.

If Mr Mueller ex­hausts all his ef­forts to get Mr Trump to an­swer ques­tions, he could seek to sub­poena the pres­i­dent. If Mr Whi­taker or­ders Mr Mueller to hold off and he com­plies, that could trig­ger a reg­u­la­tory re­quire­ment that Jus­tice De­part­ment of­fi­cials no­tify Con­gress any time the de­part­ment’s lead­ers re­ject Mr Mueller’s re­quests to take sig­nif­i­cant in­ves­tiga­tive steps.

If Mr Mueller were to defy Mr Whi­taker’s or­der and seek a sub­poena any­way, Mr Whi­taker could try to fire him.

Be­fore he joined the Jus­tice De­part­ment last year to serve as chief of staff to Mr Ses­sions, Mr Whi­taker sug­gested on CNN that the spe­cial coun­sel’s in­quiry could be curbed sim­ply by starv­ing the of­fice of fund­ing. But do­ing so would be com­pli­cated.

Mr Mueller sub­mit­ted his bud­get months ago for the fis­cal year that be­gan last month, and Jus­tice De­part­ment reg­u­la­tions re­quired Ses­sions to act upon it. The in­quiry is funded di­rectly from the Trea­sury De­part­ment, not out of the Jus­tice De­part­ment’s bud­get.

If Mr Whi­taker tries to steer the course of the in­ves­ti­ga­tion, he might find it eas­i­est to in­ter­vene in cases where pros­e­cu­tors have yet to seek crim­i­nal charges. Pros­e­cu­tors of­ten dis­agree about the strength of ev­i­dence and whether cases are winnable. While Mr Rosen­stein was said to be fairly com­fort­able de­fer­ring to Mr Mueller, Mr Whi­taker might be far more will­ing to chal­lenge his de­ci­sions on whether to pros­e­cute some­one.

Mr Mueller’s abil­ity to act in­de­pen­dently from his Jus­tice De­part­ment over­seers was a fo­cus of Thurs­day’s ap­peals court hear­ing. At the start of that hear­ing — a chal­lenge to a sub­poena by a wit­ness whom Mr Mueller is try­ing to force to tes­tify be­fore a grand jury — Judge Karen L Hen­der­son told lawyers for both sides to talk as if the fir­ing of Mr Ses­sions had not yet hap­pened.

But the court was clearly aware of the im­pli­ca­tions of Mr Trump’s in­stal­la­tion of Mr Whi­taker atop the Mueller in­ves­ti­ga­tion. Ms Hen­der­son said the panel of ap­pel­late judges was likely to ask lawyers for both sides to sub­mit sup­ple­men­tal briefs about the move.

At the hear­ing, Mr Dreeben em­pha­sised that un­der the reg­u­la­tions Ms Rosen­stein said would gov­ern the spe­cial coun­sel in­ves­ti­ga­tion, the act­ing at­tor­ney-gen­eral can fire Mr Mueller if he re­fuses an or­der that is “law­ful un­der the reg­u­la­tion.” He could also re­move the reg­u­la­tion’s pro­tec­tions and then fire Mr Mueller with­out any rea­son, he said.

If Mr Mueller were to defy Mr Whi­taker’s or­der and seek a sub­poena any­way, Mr Whi­taker could try to fire him.

PRO­BITY NEEDED: Protesters gather in front of the White House in Wash­ing­ton on Thurs­day as part of a na­tion­wide ‘Pro­tect Mueller’ cam­paign de­mand­ing that act­ing US At­tor­ney-Gen­eral Matthew Whi­taker re­cuse him­self from over­see­ing the on­go­ing spe­cial coun­sel in­ves­ti­ga­tion.